In the context of globalization and increasing cross-border mobility, an ever-growing number of Vietnamese–foreign couples (and vice versa) enter into pre-nuptial property agreements abroad. This raises an important legal question: Will such an agreement, executed overseas, be recognized and applied by Vietnamese courts?
This article examines the legal grounds, conditions for recognition in Vietnam, cases in which courts may declare the agreement invalid, and practical recommendations for parties drafting or bringing such agreements into Vietnam.

I. Key Legal Bases

1. Law on Marriage and Family 2014 (LMF 2014) – the primary legislation governing spousal property agreements:

• Article 47 provides that a spousal property regime agreement must be made before marriage registration, in written form, and must be notarized or certified; the agreed regime takes effect from the date of marriage registration.
• Article 48 sets out the basic contents that may be included in the agreement.
• Article 50 lists cases in which the agreement may be declared invalid (e.g., failure to comply with the legal conditions for civil transactions; violation of Articles 29–32; or provisions that seriously infringe maintenance rights, inheritance rights, and the lawful interests of family members).

2. Civil Code 2015 (CC 2015) – governing conflict-of-law rules for civil relations involving foreign elements:

• Article 664 establishes the order of determining the applicable law: international treaties to which Vietnam is a party, or Vietnamese law. Where such treaties or Vietnamese law allow the parties to choose the applicable law, the parties’ choice shall apply.
  However, the Civil Code also provides that foreign law shall not be applied where its consequences are contrary to the fundamental principles of Vietnamese law.

3. Decrees and guiding regulations – e.g., Decree 126/2014/ND-CP (and related instruments) guiding property regimes and resolution of family matters involving foreign elements. These instruments provide operational guidance for administrative bodies and courts.

4. Civil Procedure Code 2015 (CPC 2015) – regarding evidence, recognition of foreign documents, and application of foreign law:

• Vietnamese courts may accept foreign documents if they are prepared or certified in accordance with foreign law; courts may request the parties to provide the content of foreign law and may seek assistance from competent state authorities to verify such content.

II. Analysis: When Will Vietnamese Courts Recognize a Pre-Nuptial Property Agreement Executed Abroad?

1. Formal requirements and timing (under the LMF 2014)

To be recognized, the agreement must first meet the general validity conditions of civil transactions (under the Civil Code 2015) and the specific conditions of the LMF 2014:

• The agreement must be made before marriage registration (Article 47). If executed after marriage registration, it is not considered a “pre-nuptial property regime agreement” under Vietnamese law; amendments or supplements must comply with the same formal requirements.
• Form: written and notarized/certified (Article 47).
  If executed abroad, it must be notarized/certified by the competent foreign authority; when submitted in Vietnam, a certified Vietnamese translation is required; in many cases, legalization or Apostille (depending on applicable treaties) is necessary for the court to accept the document.
  The CPC 2015 and implementing regulations confirm that Vietnamese courts accept foreign documents if properly executed and authenticated.

2. The content must not violate mandatory provisions of Vietnamese law

Under Article 50 LMF 2014, the agreement may be invalid if:

• It fails to satisfy the validity conditions of a civil transaction (e.g., lacking notarization/certification; a party lacking legal capacity);
• It violates Articles 29–32 LMF concerning fundamental marital rights (e.g., protection of residence, rights to dispose of common property);
• Its content seriously infringes maintenance rights, inheritance rights, or the lawful interests of family members.
  If a foreign agreement contains provisions contrary to these mandatory rules, Vietnamese courts may invalidate the relevant clauses or the entire agreement.

3. The issue of “applicable law” and the possibility of Vietnamese courts applying foreign law

If the agreement specifies that it is governed by a foreign law, two issues arise:

1. Formal validity:
   Vietnamese courts will examine compliance with Vietnamese formal requirements (e.g., notarization, timing prior to marriage). Even if the agreement follows foreign law, the form must still satisfy Vietnamese standards under the LMF and CC.
2. Interpretation and substantive validity:
   The Civil Code 2015 (Article 664 and related provisions) allows application of foreign law to civil relations with foreign elements when permitted by law or treaty.
   Courts may request the parties to provide:
   1. the content of foreign law,
   1. translations,
   1. expert opinions.
      Foreign law will not be applied if its application contradicts Vietnam’s fundamental principles or public policy.
      Therefore, courts may apply foreign law to interpret rights and obligations under the agreement, provided that:
   1. it does not conflict with mandatory Vietnamese rules;
   1. the foreign law is duly proven; and
   1. its application does not violate Vietnam’s public policy.

4. Marriage registration and the time of effectiveness

• Under Article 47 LMF, the agreed property regime takes effect from the date of marriage registration.
• If the marriage is registered abroad, the parties may need to register or record it in Vietnam for the agreement to be fully effective under Vietnamese law.
• If only registered abroad and not recorded in Vietnam, the court will still determine marital status and applicable law based on proof of foreign marriage registration, but this may affect the determination of the agreement’s effective date.

5. Rights of third parties / transactions with third parties

Vietnamese law protects the interests of bona fide third parties. If spouses fail to notify third parties of the agreed regime and the agreement negatively affects third-party rights, courts may refuse to enforce certain consequences against such third parties (as provided in relevant decrees and guidance).

III. Cases in Which Vietnamese Courts May Declare an Agreement Executed Abroad Invalid

Based on the LMF 2014, CC 2015, and judicial practice, courts may invalidate all or part of the agreement in the following situations:

1. Failure to meet formal or timing requirements (e.g., executed after marriage; improper notarization/certification under Vietnamese requirements).
2. Content violating Articles 29–32 or other mandatory Vietnamese rules (e.g., depriving children of maintenance rights; depriving a spouse of his/her sole residence, resulting in homelessness).
3. Application of foreign law leads to consequences contrary to Vietnam’s fundamental principles or public order.
4. Failure to prove the content of foreign law when it is essential for determining validity or interpretation (e.g., lack of authenticated documents, lack of legalization/Apostille).
   In such cases, under the CPC 2015, if the content of foreign law cannot be proven, the court may apply Vietnamese law instead.

IV. Summary of Key Legal Conclusions

A pre-nuptial property agreement executed abroad can be recognized by Vietnamese courts if:

1. It meets the formal requirements of the LMF 2014 (executed before marriage; notarized/certified; properly legalized/Apostilled; with notarized Vietnamese translation).
2. Its content does not violate mandatory provisions of Vietnamese law (Articles 29–32; Article 50 on invalidity).
3. Where foreign law is relied upon, the parties provide sufficient proof of the foreign law; and the application of such law does not contravene fundamental principles or public policy of Vietnam.

However, Vietnamese courts do not automatically recognize all foreign pre-nuptial agreements. If the agreement lacks proper formalities, violates mandatory provisions, or applying foreign law would contradict Vietnamese public policy, the court may invalidate all or part of the agreement.

V. Practical Recommendations

1. Draft the agreement to comply with both legal systems:
   Prepare the agreement under the desired foreign law while ensuring it does not violate mandatory Vietnamese rules (e.g., maintenance rights, residence rights, minimum inheritance protections).
2. Properly authenticate foreign documents:
   Notarize/certify the agreement in the country of execution; when submitting in Vietnam, complete legalization/Apostille (as applicable) and obtain a notarized Vietnamese translation. Also prepare proof of marriage registration (whether abroad or in Vietnam).
3. Prepare evidence of foreign law:
   Provide statutory excerpts, official documents, and/or expert legal opinions to facilitate the application of foreign law by Vietnamese courts (as required under the CPC 2015).
4. Include fallback (substitute) clauses:
   Insert a provision specifying an alternative applicable law if the primary governing law cannot be applied in Vietnam or if certain clauses are deemed contrary to mandatory rules—an approach commonly used in cross-border agreements.
5. Seek dual legal advice:
   When drafting an agreement abroad involving a Vietnamese national or property located in Vietnam, consult both local counsel (in the foreign jurisdiction) and Vietnamese counsel to identify conflicts of law, risks of invalidity, and procedural requirements.

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Khuong Ngoc Lan